In agreeing to review two rulings by the 4th Circuit Court of Appeals and 9th Circuit Court of Appeals on President’s Trump’s March 6, 2017, Executive Order, the Supreme Court reinstated certain provisions of the Executive Order that the lower courts had blocked. The March 6th Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” was to suspend visa issuance for individuals from six countries, including Libya, Iran, Somalia, Sudan, Syria, and Yemen for 90 days. This provision, often referred to as the “travel ban,” effectively prohibits travel to the United States for individuals from the six affected countries. Continue Reading Supreme Court Allows Major Provisions of Travel Ban to Go Into Effect
In an en banc decision issued yesterday, the United States Court of Appeals for Seventh Circuit held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation. See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017). In doing so, it became the first court of appeals to reach this conclusion, disagreeing with contrary decisions from multiple other circuits. While this issue could very well be taken up by the Supreme Court of the United States, any Supreme Court decision would likely not come before early 2018. Absent expedited action by the Supreme Court or a stay of the ruling, this will remain the law in the Seventh Circuit for the foreseeable future.
Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). As the court acknowledged in the beginning of its opinion, virtually all courts of appeals shared the Seventh Circuit’s prior view that the term “sex” as used in Title VII “implies that it is unlawful to discriminate against women because they are women and against men because they are men,” and does not speak to discrimination based on sexual orientation. Op. at 3-4. Continue Reading Seventh Circuit Holds That Title VII Prevents Sexual-Orientation Discrimination—Will More Courts Follow? And Is Title IX Next?
On January 27, 2017, the White House handed down an Executive Order suspending entry into the United States, as well as issuance of visas, for individuals “from countries of particular concern.” The Order also directs the implementation of additional screening mechanisms for all foreign national travelers to the United States. Colleges and universities that employ foreign national workers and enroll foreign students should be cognizant of the Order and its impact on the ability of their foreign national workers and students to obtain a visa and travel to the United States. Continue Reading Executive Order on Immigration and its Impact on Colleges and Universities
On Tuesday, November 22nd, the United States District Court for the Eastern District of Texas issued an order granting a motion for preliminary injunction brought by 21 states and numerous business associations to stop the implementation of the new FLSA salary level test for exempt employees.
In order for an employee to be considered “exempt” from minimum wage and overtime requirements under the FLSA, the employer must determine that the employee’s position meets a three part test. First, the position must earn a salary. Second, the employee must meet the minimum salary level test for each week worked for the employer. And third, the employee’s “primary” duties must be the performance of exempt work as described in the regulations. Continue Reading Texas Federal Court Halts New FLSA Salary Level Test
On August 23, 2016, the National Labor Relations Board (“NLRB” or the “Board”) ruled in a 3-1 decision that graduate students working as teaching and research assistants at private colleges and universities may engage in collective bargaining. In doing so, the NLRB expressly overruled its prior decision in Brown University, which held that graduate assistants did not enjoy this right. Graduate assistants at private institutions may now unionize and bargain on topics such as benefits and working conditions. Continue Reading NLRB rules that graduate assistants at private colleges and universities may unionize
Roughly 70 million Americans—nearly one in three adults—have a criminal record. Staggering statistics like this are leading a growing number of colleges and universities to go “beyond the box” to reduce barriers to applicants with criminal justice pasts. Continue Reading Beyond the criminal history box in admissions
A common misconception is that the phrases “non-exempt employee” and “hourly employee” are interchangeable. However, non-exempt employees are not necessarily hourly employees; the Fair Labor Standards Act (FLSA) allows colleges and universities to pay their non-exempt employees on a salary basis as long as they meet minimum wage and overtime mandates. Paying certain non-exempt employees on a salary basis may prove a useful tool as institutions weigh the changes on campus necessitated by new FLSA regulations (previously discussed here). Continue Reading Can non-exempt employees get a salary? Consider the fluctuating workweek method
On May 18, 2016, the Department of Labor (DOL) issued the long-awaited final version of its amendments to the Fair Labor Standards Act’s (FLSA) overtime and exemption regulations. The final version differs in some ways from the proposed regulations. It will have significant administrative and budgetary impacts on institutions of higher education.
Key Changes & Differences Between Proposed Regulations and Final Regulations
The new regulations:
- Raise the salary level test for most exemptions to apply from $455 per week ($23,600 annually) to $913 per week ($47,476 annually). This new salary level is based on the 40th percentile of earning of full-time salaried worked in the lowest-wage Census Region, currently the South. The new salary level is different than the proposed regulations, which indicated that the salary level would rise to $970 per week ($50,440 annually).
- Raise the total annual compensation requirement for highly compensated employees (HCEs) from $100,000 to $134,004. This annual compensation level is based on the 90th percentile of full-time salaried workers nationally. This amount of annual compensation is different than the proposed regulations, which indicated that the total annual compensation requirement for HCEs would rise to $122,148.
- Establish a mechanism for automatically updating the salary and compensation levels every three years to maintain levels at the 40th and 90th percentiles and to ensure that they continue to provide useful and effective tests for exemption. This structure is different than the proposed regulations, which indicated that the automatic updates would occur on an annual basis. The first three-year automatic update will be effective on January 1, 2020.
This week, the Supreme Court of the United States issued an important decision for public institutions of higher education. In Heffernan v. City of Paterson, 578 U.S. ___ (Apr. 26, 2016) (slip op.), the Court held that public employers can be liable for violating an employee’s First Amendment rights even if it turns out that the employee was not actually engaged in conduct protected by the First Amendment. Rather, the Court held that it is the motives of the public employer that matter—if the employer punishes an employee for activities that (if they would have occurred) are protected by the First Amendment, the employer can be liable for damages.
For a more comprehensive analysis of the decision, please see our recent Legal Alert. This decision has significant implications for public colleges and universities. Frequently, professors and other employees engage in speech activities that may be protected by the First Amendment. Because the Supreme Court has now confirmed that it is solely the motives of employers at issue in these cases, chancellors, presidents, deans, and other individuals in public college or university leadership need to be cognizant of the types of speech that are protected. This can be a difficult inquiry, and is one that is even more important following Heffernan.
As we previously discussed, employment litigation is one of the fastest growing areas of litigation colleges, universities, and other employers face. Employers can be confronted with legal liability from applicants, stemming just from the hiring process, even if an employer ultimately does not hire the potential employee. Missteps in the recruiting and hiring process are even more likely to occur when an employer is under a short timeframe to hire a new employee. Continue Reading 5 Things You Must Do Before Hiring an Employee